Charles D. Mabry v. Virgil C. Reid ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

______________________ NO. 09-06-480 CV ______________________ CHARLES D. MABRY, Appellant

V.

VIRGIL C. REID, Appellee

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On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-177040

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  MEMORANDUM OPINION

This is an accelerated appeal from a trial court's dismissal order granting Virgil Reid's special appearance motion. We affirm the order.

Charles Mabry sued Virgil Reid in a prior lawsuit based on the same facts. The trial court granted Reid's special appearance motion in that case and dismissed him from the lawsuit because of lack of personal jurisdiction. Mabry appealed to this Court, and we affirmed the trial court's order. See Mabry v. Reid, 130 S.W.3d 385, 390 (Tex. App.--Beaumont 2004, no pet.). Mabry did not appeal our decision. A year later, in a different case, the Texas Supreme Court disapproved of Mabry and other opinions with holdings based on similar considerations. See Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 791-92 & n.82 (Tex. 2005) (disapproving of appellate court holdings that "specific jurisdiction turns on whether a defendant's contacts were tortious rather than the contacts themselves.").

After the Michiana decision, Mabry sued Reid again. The current lawsuit involved in this appeal contains fraud allegations based on the same operative facts as those alleged against Reid in the prior lawsuit. Again the trial court granted Reid's special appearance motion and dismissed the suit for want of jurisdiction. Mabry filed this appeal. See Tex. Civ. Prac. & Rem. Code Ann. 51.014(a)(7) (Vernon Supp. 2006).

In Reid's special appearance motion, he asserted he did not have sufficient minimum contacts with Texas for a Texas court to assume jurisdiction over him. He also asserted that the exercise of jurisdiction over him would offend traditional notions of fair play and substantial justice because the matter already has been litigated and cannot be re-litigated. See generally Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 575 (Tex. 2007) (personal jurisdiction proper when nonresident defendant has established minimum contacts with forum state and exercise of jurisdiction comports with traditional notions of fair play and substantial justice).

By filing this lawsuit against Reid on the same operative facts as in the earlier lawsuit, Mabry is attempting to litigate the decided jurisdiction issue again. "A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against." Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (collateral attack on bankruptcy court's confirmation order). Collateral attacks on final judgments are generally disallowed because it is the law's policy to give finality to judgments. See id. at 345 .

A party may collaterally attack a void order. See id. at 346; see generally Henderson v. Chambers, 208 S.W.3d 546, 549-554 (Tex. App.--Austin 2006, no pet.) (collateral attack on divorce decree). Mabry does not argue the 2003 dismissal order is void. (Mabry Brief) He does not allege that extrinsic fraud denied him an opportunity to fully litigate the jurisdiction issues in the trial court, or that extrinsic fraud prevented him from appealing this Court's earlier decision to the Texas Supreme Court. He does not assert different jurisdictional facts, nor does he assert a change in circumstances or in Reid's contacts with Texas. He may not avoid the determinative effect of the prior order based solely on the argument that the earlier decision was made incorrectly. See generally Hallco Texas, Inc. v. McMullen County, 221 S.W.3d 50, 60-61 (Tex. 2006) ("[C]laim preclusion inheres regardless of whether the prior decision was correct. If Hallco wished to challenge the court of appeals' decision, it could have filed an appeal, which it chose not to do.") (citation omitted). The Texas Supreme Court's decision in Michiana, expressly disapproving of the basis for the holding in Mabry, did not have the effect of rendering the dismissal order in Mabry void. To haul Reid back into court with a second lawsuit on the same facts without a change in jurisdictional contacts -- when the threshold jurisdictional issue has already been litigated -- would offend traditional notions of fair play and substantial justice.

Mabry's issues on appeal are overruled. The dismissal order of the trial court is affirmed.

AFFIRMED.

DAVID GAULTNEY

Justice

Submitted on March 29, 2007

Opinion Delivered August 2, 2007

Before McKeithen, C.J., Gaultney and Horton, JJ.